BEFORE THE ARBITRATOR
In the Matter of a Dispute Between
CHIPPEWA FALLS FEDERATION OF
LOCAL 1907, WFT, AFT, AFL-CIO
CHIPPEWA FALLS AREA UNIFIED SCHOOL
(Summer School Grievance)
Shneidman, Hawks & Ehlke, by Attorney Timothy E. Hawks,
700 West Michigan Avenue, Suite
500, P.O. Box 442, Milwaukee, Wisconsin 53201-0442, on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney James M.
Ward, 3624 Oakwood Hills Parkway, P.O.
Box 1030, Eau Claire, Wisconsin 54702-1030, on behalf of the District.
On June 20, 2002, the undersigned issued an award subsequent to a hearing in the
captioned matter, providing, in pertinent part:
The District violated Article VIII, Section C., Paragraph 2 of
the collective bargaining
agreement when it employed members of the bargaining unit as teaching assistants at the rate
per hour during the summer school program in the summer of 2001. Therefore, the District
make all such employees whole according to the provisions of Article VIII, Section C.,
The undersigned will retain jurisdiction
over this matter for a period of 30 days after entry of
the Award to address any issues arising regarding the implementation of the remedy.
Subsequent to issuance of the award, a question was raised as to implementation of
in that the District did not compensate five of the teaching assistants hired in the summer of
according to the terms of the award. The five teaching assistants Dave Likar, Carol
Jessen, Amanda Braden and Heather Kurth, although all certified teachers, were not regular
of the District's faculty. Likar and LeDuc were retired teachers, Jessen was a long-term
and Braden and Kurth were teachers in another school district, who were hire by the District
summer session. The District believes these teachers are not covered under the collective
agreement and, therefore, are not entitled to the remedy. The Union believes the teachers
under the terms of the contract and are entitled to the remedy. This Supplemental Award is
issued to resolve the conflict.
Salary and Teacher Welfare
. . .
Section C. Extended
. . .
2. Summer School
a. Teachers on the staff
shall be given first preference for summer teaching based on their
training and experience in the areas offered. In the event of equal training and experience,
system seniority prevails. Staff for summer school shall be offered a contract for such
employment as early as commitments can be made. Contracts shall be written and state
salary, teaching assignments, duration and the number of hours taught daily.
b. Teachers employed
to teach summer school shall be paid a minimum amount according
to the following formula: The fraction of the normal teaching day times 1/188 of the
contracted salary for the previous semester times the number of summer school days.
(The above formula shall be applied to teachers not under contract; i.e., experience,
degree and additional credits shall determine the position on the salary schedule). Each
approximately 50 minute period taught shall constitute 1/6 of a day. The Fourth of July
shall be considered as a paid legal holiday.
c. Teachers shall be
notified of existing and expected vacancies in the summer school
program by May 1 of each year and of appointment to the summer school no later than
d. Appointment to
summer school positions shall be made for a period of one (1) summer.
OTHER RELEVANT LANGUAGE
Recognition and Scope
The Board recognizes the Federation as the
sole and exclusive bargaining representative for all certified teachers
employed by the Chippewa Falls Area School district, excluding supervisors, confidential
personnel and substitute
teachers. All employees for whom the Federation bargains shall hereinafter be referred to as
POSITIONS OF THE PARTIES
The Union asserts that all the teaching assistants were covered by the collective
agreement and should have been paid according to the terms of the award. The Arbitrator's
required payment to all teaching assistants who worked for the District in Summer, 2001.
Likar, Carol LeDuc, Emily Jessen, Amanda Braden and Heather Kurth all qualify under this
All the listed persons are certified teachers who were hired as teaching assistants in
2001. Although none were regular employees of the District during the school year, all were
by the collective bargaining agreement. The recognition clause includes "all teachers
the Chippewa Falls Area School District . . ." as members of the bargaining unit. Further,
VIII, Section 2, Paragraph b, which sets out the formula for compensating summer school
specifically provides for payment of teachers not under contract. Thus, even though the
Grievants were not employed by the District as teachers during the school year, they were
for and covered for summer school purposes under the agreement. The language of the
covering the Grievants is clear and should be interpreted according to its plain meaning.
to that language, the Grievants are entitled to be paid a per diem which assumes placement
contractual grid according to their experience, degree and additional credits and then applies
formula applicable to other teachers on the regular faculty. The District failed to do this and
be required to do so.
The District asserts that the requested remedy goes beyond the scope of the stipulated
in the arbitration. That issue merely asked whether the District violated the contract
". . . when it
employed members of the bargaining unit as teaching assistants at the rate of $15
per hour . . ." The Union's argument is based on an overbroad interpretation of the
clause that assumes that all certified teachers employed by the District, without limitation,
considered members of the bargaining unit. Taken to its logical extreme, this definition
certified teachers hired as short-term substitutes, as well as those hired as teachers aides.
complications arising from such a construction make such an interpretation unreasonable.
The District also claims surprise as a result of the Union's argument. Nothing within
framework of the stipulated issue puts the District on notice as to the breadth of the Union's
If the Union wants now to come forward and seek redress for theses persons, it should bear
burden of having raised the issue in a clear and timely fashion, which it did not. The
prejudiced the District because, had there been advance notice of the Union's position, the
could have produced evidence at the hearing bearing on how non-staff teachers have been
in the past. As it was, no such opportunity was given. Thus, the Arbitrator is left to
speculate as to
the purpose for which the language in Article VIII, Section 2, Paragraph b, was added
to the contract
and who it was meant to cover.
Under the circumstances, therefore, the Arbitrator should adopt a narrow
the stipulated issue and not expand upon it. Numerous arbitrators have held that once an
stipulated to by the parties, an arbitrator should not expand the inquiry (citationsomitted). The
award itself restricts its scope to members of the bargaining unit, suggesting that the
adopted a narrow view of the issue, confining the award to only teaching assistants who were
otherwise regularly employed by the District. The Arbitrator should not expand that
I note at the outset that, as the District points out, the stipulated issue does not raise
of whether all the teaching assistants were covered by the collective bargaining agreement.
record also does not contain substantial evidence on this point, but is largely devoted to the
question of whether the persons in question were, in fact, working as teachers
designation as assistants. I do not find, however, that this indicates subterfuge on the part of
Union. Rather, I view it as a breakdown in communication. It appears that the Union from
considered all the assistants to be covered by the agreement based on the contract language
assumed the District agreed. Put another way, it did not consider the question to be disputed
did not raise it. The District, for its part did nothing to disabuse the Union of this
impression. I do
not mean to suggest that the District had the burden of raising this issue in the first instance
to do so. I do find, however, that the transcript and post-hearing briefs do reflect the fact
Union considered itself to be asserting the claims of all 13 teaching assistants and the District
contest this at the time. Again, I do not suggest that this was deliberate on the
District's part, only that at the time of hearing, neither party had reason to believe the
eligibility to be disputed and so it did not receive the attention from either side that it might
I also decline the District's request to circumscribe the issue so as to eliminate
of this question. As framed by the parties, the issue in the arbitration was:
Did the District violate Article VIII, Section C, Paragraph 2
the collective bargaining
agreement when it employed members of the bargaining unit as teaching assistants at the rate
per hour during the summer school program in the summer of 2001?
If so, what is the appropriate remedy?
As framed, the issue assumes mutual agreement on the meaning of the term "members
bargaining unit." The raising of this question after the issuance of the award, however,
there is no such understanding. Thus, a determination of who is covered under this
falls both within the scope of the issue and the Arbitrator's authority.
In considering the Union's position, it is my view that an interpretation of the
clause that includes any certified teacher employed by the District under any circumstances
bargaining unit is overbroad and does not comport with the intention of the parties in
this language. As the District points out, such a construction would create numerous
interpreting and applying several different provisions of the contract. Among other things, it
create confusion over the status of certified teachers employed as aides or in other capacities,
would thus arguably be covered by other collective bargaining agreements, as well. It would
create some possibly interesting permutations regarding teachers, such as some in question
are otherwise employed by other Districts during the regular school year. Thus, I do not
broad definition of "bargaining unit member" prayed for by the Union under the recognition
This does not, however, end the inquiry. As pointed out by the Union, the language
VIII, Section C, Paragraph 2, specifically provides for summer school teachers who are not
contract. This paragraph sets out a formula for determining the contract rate for summer
teachers using a daily fraction of their contracted salary for the previous semester as the
their summer school duties. The provision anticipates, however, that some teachers will not
this formula because they were not under contract the previous semester and so have no
contract rate to base their summer school compensation upon. For such teachers a contract
established by using their teaching experience, degree and additional credits to determine
would have been on the schedule had they been under contract and then imputing that salary
them. The Union maintains that this language was specifically intended to cover teachers
those at issue herein. The District argues that the evidence on this point is, at best,
that the Union, therefore, has failed to make its case. I disagree.
The specific language at issue states:
The above formula shall be applied to teachers not
contract; i.e., experience, degree
and additional credits shall determine the position on the salary schedule. (Emphasis added.)
In my view, and absent evidence to the contrary, the language is clear. It provides
teachers who are employed to teach summer school, but who are not part of the District's
during the regular school year, and thus not under contract, will be compensated as if they
would include all the persons at issue here, whether retired, regularly employed by other
employed in other capacities. For whatever reason, the parties at some time in the past
extend the cloak of the collective bargaining agreement over these employees for this limited
and so the Union is likewise empowered, and perhaps obligated, to assert their claims under
section of the contract. If this were not the case, these individuals would have no recourse
the District for failure to honor this provision. I find, therefore, that these individuals,
technically bargaining unit members under the recognition clause, are protected by the
bargaining agreement and that the Union properly asserted their claims along with those of
Grievants who are regular certified teachers within the District.
Based upon the foregoing and the record as a whole, therefore, I hereby make and
Dave Likar, Carol LeDuc, Emily Jessen, Amanda Braden and Heather Kurth are
the arbitration award issued in this matter on June 20, 2002. The District is, therefore,
compensate them according to the formula set forth in Article VIII, Section C, Paragraph 2
collective bargaining agreement for their services as summer school teachers in the summer
Dated at Fond du Lac, Wisconsin, this 31st day of October, 2003.
John R. Emery, Arbitrator